April 24, 2016

"Paradoxically, Justice Antonin Scalia..." — I'm not seeing the paradox.

From "Pseudoscience in the Witness Box/The FBI faked an entire field of forensic science," by Dahlia Lithwick:
Paradoxically, Justice Antonin Scalia has emerged as a vocal early skeptic about the risk of taint in the work of crime labs, even though he contended in 2006 that, “It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.” It is clearer now than ever that crime labs and prosecutors’ officers do make mistakes, shameful, devastating mistakes, and that they don’t usually distinguish between capital and noncapital cases when they do so.
What's the paradox? It sounds coherent to me — concern about evidence and the proper role of the court.

By the way, the original meaning of "paradox," now obsolete, was "A statement or tenet contrary to received opinion or belief, esp. one that is difficult to believe" (OED). The current meaning is "an apparently absurd or self-contradictory statement or proposition, or a strongly counter-intuitive one, which investigation, analysis, or explanation may nevertheless prove to be well-founded or true" or "A proposition or statement that is (taken to be) actually self-contradictory, absurd, or intrinsically unreasonable." So, Scalia's 2 positions may be paradoxical to those who don't immediately see the coherence, as I did. Lithwick may have a point of view and assume the reader shares it, which makes "Paradoxically" an exciting segue rather than what it felt like to me — distracting nodding at the we-loathe-Scalia crowd.


cliff claven said...

When you consider the "man" who started the FBI crime lab was faux, it all makes sense.

Bob Ellison said...

Of course you see the paradox. Acknowledging belief in the paradox is the real challenge.

Big Mike said...

Cameron Todd Willingham

Lem said...

"Where, O death, is your victory? Where, O death, is your sting?"

It matters to me that my mom... I always love my mama, she's my favorite girl.

Don't mind me, some posts and songs are wowing concurrently.

Michael K said...

This fits well with the recent press from the left to empty the prisons so we can run the 1970s crime experiment again.

Of course, Terry McAuliffe is way ahead of the curve in getting them all registered to vote for Hillary.

Too bad the GOP Establishment stiffed Ken Cuccinelli in the election.

His chief strategist, Chris LaCivita, has complained that the Republican Governors Association and other GOP donors prematurely stopped giving to Cuccinelli’s campaign at a time when a victory was still possible. That has led some observers to call Cuccinelli a sore loser.

"Some Observers" being the WaPo.

David Begley said...

Scalia was concerned about strict proof and the original meaning of the Constiution.

Liberals don't care. They want the political results that favor them.

Sebastian said...

"So, Scalia's 2 positions may be paradoxical to those who don't immediately see the coherence, as I did. Lithwick may have a point of view and assume the reader shares it, which makes "Paradoxically" an exciting segue rather than what it felt like to me — distracting nodding at the we-loathe-Scalia crowd" Right. So there's nothing unparadoxical here, since she shows that the apparently absurd notion that Scalia may have been right and good on some important issue nevertheless proves to be true. Of course, the "distraction" is the point. If you a law professor!, cared, you could do something about it. You know, like showing, from a non-con perspective, how Scalia made a whole lot of sense on a whole lot of issues. Not that it would do any good: the loathe-Scalia crowd is immune.

kentuckyliz said...

Oh Ann, you were just distracted because your virtue wasn't signalled.

Fernandinande said...

It was later revealed that one of the hairs presented at trial came from a dog.

That dog was probably guilty of something.

MadisonMan said...

Allen Sherman said it best:

And when Ben Casey meets Kildare
that's called a pair a docs

Roger Sweeny said...

There is a reason "civil libertarian" and "libertarian" differ by only an adjective.

The paradox is how people who love to think good things about governments (I'm looking at you, BernieBros) can be civil libertarians. When push comes to shove, they often are not.

(While I'm here, I want to put in a plug for Ken Kersch's Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge, 2004). It's not the simple Whig History you probably learned in school.)

Big Mike said...

You want a paradox? Gilbert and Sullivan have a paradox.

At any rate, I think that Scalia was simply wrong about the innocence being "shouted from the rooftops." Willingham's case has been "shouted from the rooftops," and as nearly as I can tell, no one much cares. I think that Scalia, imagined the laboratories as being staffed with scientists who do their best to analyze the evidence honestly and impartially. He should have been more skeptical.

Hagar said...

For Lithwick, it is a paradox that Antonin Scalia was allowed to walk the face of the earth.

ken in tx said...

Ann is right. The word Paradox is meant to signal that they would expect anything Scalia approves to be wrong, stupid, and evil. That this is not is a paradox to them.

JCC said...

The state of any science changes over time. That forensics changes with time should be no surprise. If I were to suggest that AGW is becoming discredited, I probably wouldn't get much argument here (aside from the usual suspects). Why is it shocking that forensic odontology, as an example, is less science than art, or that polygraph exams are now known to be fallible? Isn't the best medical diagnostician probably using more art than science at times?

I agree with Ken, who says that the only paradox is that the left wing expects anything originating with Scalia to be evil and vacuous rather than sound and logical. BTW, Dahlia Lithwick is a bird brain, who twists the law to mean what she wants it to mean, which explains her popularity amongst liberals.

The source of most of this smoke though, is the Innocence Project, and the Natl Association of Criminal Defense Lawyers, hardly impartial either one. Many, maybe most, of the so-called exonerations have actually been persons who were clearly guilty as sin raising grounds for a new trial, which has become impossible because of the passage of time, so the defendant walks and is "exonerated" of a crime that he/she pretty obviously committed.

And all these DNA-based "exonerations"? Most of them are probably the result of contamination, because these days, our ability to locate and discriminate individual DNA has outstripped our ability to determine age or relative layers of that DNA.

BTW, Willingham was guilty, overwhelmingly so. Much was made of the original arson reports, which relied on dated science, and concluded arson, compared to the newer reports which used more modern scientific conclusions, but which still strongly suggested arson whie written in a way to hide that fact.

JCC said...

I'll add this. If the facts support your position, why lie? But the very first case cited, that of a man convicted of robbery-homicide, who did 25 years and later "exonerated" is light on the facts in the telling. According to the FBI Lab bashers, it was all about the lie of hair comparison that sent him away. I guess Ms Lithwick forgot to mention a few salient issues from the trial:

The defendant confessed to two civilians (at different times) that he participated in 2 robbery homicides. Both murders involved a .32 cal revolver, never recovered. One witness said the defendant sold her a .32 revolver right after the second murder. The defendant denied doing so. A search of his room turned up .32 cal ammunition in his closet. Ballistically, the ammo was a match for the murder bullets (by kind). The defendant first said the bullets belonged to his father. Then he admitted they were his, and finally admitted to possessing a .32 revolver which he did sell right after the second murder. The suspects in the robberies wore stocking masks. One was found in the co-defendant's bedroom. Another was found a block away from the 2nd murder. Hair in that stocking was unable to be matched by DNA to either suspect 28 years later. The revolver was never recovered. The suspect was "exonerated" in 2012 because an FBI examiner testified in the original trial that the hair in the stocking cap was identical to the suspect's hair. In 1978, hair comparison was considered scientifically valid. It was also asserted that we were facing a new ice age and that mass starvation was coming and that we would run out of oil. I mean, Jimmy Carter had been elected by a majority of Americans, which should say something about the state of knowledge in this country.

The suspect was awarded $13 million dollars for this exoneration. There doesn't seem to be any record of how much the lawyers were paid.

Qwerty Smith said...

"Despite Drop in Crime, an Increase in Inmates"

--The New York Times's idea of a paradox, 2004

Unknown said...

Lithwick. That's all you need to know.

Big Mike said...

@JCC can you give me a link or two? Because everything I've read says Willingham was convicted based on bogus science and a jailhouse snitch.

D.D. Driver said...

Ugh. Lithwick is the worst. At everything. This sentence: "Paradoxically, Justice Antonin Scalia has emerged as a vocal early skeptic about the risk of taint in the work of crime labs..."

If you click on the link, Scalia was not *skeptical* of the risk of taint. He was *concerned* about the risk of taint. Thus her paragraph makes no sense as written.

She is just bad at writing and using the English language.

JCC said...

@ Big Mike -
It wasn't a single link. I actually downloaded both sets of arson reports (about 5 or 6 as I recall, which included the originals, the rebuttals and at least one rebuttal to the rebuttals) and read the originals. Then I downloaded and read most of the available court documents, which represent the best arguments of government and defense. For instance, Willingham confessed to his wife, who had been defending him, prior to his execution. Or the supposed "new science" in the analysis of the fire evidence is entirely consistent with arson, and in fact, is more indicative of arson than any other explanation. However, it is not conclusive in that there could be other possible causes. But not probable causes other than arson, because even those reports, if read as scientific documents, suggest that only arson will account for the totality of evidence. You won't read that in popular accounts though. So when you read a popular account, you will hear about about dated science. That's true. The science of what a fire does to various materials, and how a fire acts and spreads did change in the years after Willingham's conviction. But to simplify, it meant that instead of an arson investigator testifying that it was 100% arson, it would have been only, I don't know, maybe 90% indicative of arson. Since there was other, pretty strong circumstantial evidence of guilt, that's why all the BS about the "bogus science" never resulted in Willingham getting a new trial.

And, for instance, one of the supposed "new scientific studies" of the Willingham fire dealt more with witness testimony than physical evidence, and it misquoted much of that testimony. It also completely - erroneously or intentionally - misquoted the testimony of the original arson investigators so as to misrepresent the basis for their findings, and then knocked down the erroneously quoted testimony. And tellingly, most of that supposed new scientific evidence never made it into a courtroom. Most of the clamor about Willingham appeared in the media, not in court. There's a reason for that. The media doesn't bother examining the factual basis for claims. I mean, it's Texas, right? Got to be some kind of lynch mob thing.

There were 2 examples IIRC. The new reports suggested one possibility for the fire: a ceiling fan started the fire. The original arson investigators testified that the fan was wired without a common or third wire, and that the wall switch was off, so that the ceiling fixture was dead. No power when the switch was off. Pretty simple, but that testimony was left out of the follow-up reports. Next, there is a fire phenomenon called 'pooling' which just means a fire burns to a different depth in a floor, causing a terraced appearance, and it's usually caused by something which is present on the floor which burns hotter where the depth of the burn is greatest. It can mean that's where an accelerant was poured, like gasoline. There was pooling all over the Willingham house, including on the front porch and under the front door, very unusual, and it was cited as evidence of arson. A number of empty lighter fluid cans were were seen on the front porch by firemen, but were destroyed in the fire or the fire fighting. The new "scientific" reports claimed that this could have been from glue, behind the wallpaper, melting, running down the wall and then out to the center of several rooms, and only then igniting, caused the pooling seen in the bedrooms, hallway and front door. No one was cited as ever seeing this occur in prior fires though, but it's claimed to be evidence that Willingham was railroaded by junk science. These are just 2 that I remember as being particularly unlikely from the new science.

BTW, one of those most strongly convinced of Willingham's guilt, besides his wife? His original defense lawyer. Tell you anything? There may be someone, somewhere, wrongly convicted of a capital crime. It's not Willingham I think.

Big Mike said...

@JCC, thank you for the clarification. FWIW my son left multiple cans of charcoal lighter fluid in my garage. He bought more than he needed, then learned how to start a better fire without fluid using a chimney like this one. So if he'd left them on a wooden floor and arson investigators found multiple instances of pooling, they might erroneously conclude that arson had taken place.

Still, as I wrote, thank you for the clarification.

Steven said...

There's a difference between it being "clear" (Scalia's word) that someone was innocent, and merely not guilty beyond a reasonable doubt.

Willingham is very much the second. That there's (arguably) not enough evidence to prove arson is not the same thing as their being proof it wasn't arson. That jailhouse snitch testimony is unreliable is not proof that it is false. Willingham's behavior during the fire being strange (per the testimony of eyewitness neighbors) hardly exonerates him, even if it isn't enough to justify an execution. A man with a history of domestic violence is not necessarily going to escalate to murder, but it's a background that's consistent with that of a murderer, not one that would raise doubts. And so on. You can doubt the evidence against him, but there's no evidence pointing at any other cause of the fire, or alibi proving innocence, or the like. The best you can say is, "We didn't know enough to justify convicting Willingham."

Compare, say, the Amanda Knox case. A man, who left bloody fingerprints on the victim's possessions, confessed to the murder of Meredith Kercher. So, with the killer caught, the authorities invented a whole murder conspiracy involving a 20-year-old woman with no history of violence and no known connection to the killer, with their sum total of evidence . . . a speck of her DNA (possibly cross-contaminated by the investigators) being found on a knife in the house where she lived and an interrogation conducted under sleep deprivation through an interpreter.

There's no "Amanda Knox" for the death penalty in the US, just Cameron Willingham.

MD Greene said...

Scalia manned the lonely firewall for the rights of the accused in a period when it was assumed that all the accused were guilty. Many people now out of prison, if they heard of him, would speak highly of Scalia. But why should they? He only applied foundational principles of due process that they deserved all along.

JCC said...

@ Steven -

I thnk you're forgetting he confessed to his wife. And there was other evidence, scientific evidence, of arson. The pooling around the front door, which went from the porch under the door into the interior, was never explained except for the presence of an accelerant. The defense said this was coincidence, from the lighter fluid left on the front porch for a charcoal grille, lighter fluid they originally denied existed. OK, how about the pooling that ran down the entire length of the hallway, you know, like someone backing out of the house, pouring as they went? More coincidence, from the melting glue, none of which ignited until it coincidentally got to the center of the hallway. That pesky unpowered electric fan? OK, never mind that. The fire really started from an electric space heater. The pooling in the bedrooms? Oh, melted plastic toys, or not, something. Willingham had localized burns on one hand, but no other injuries, etc. which might be consistent with someone who started a fire and got burned when it flashed. (I believe the children died of smoke inhalation, not burns, so why didn't Daddy go in and get them). The defense was predicated on an amazing set of outlandish coincidences, all of which were needed to explain what otherwise was a single source: arson. Willingham's refusal to try to save the kids was also left without explanation, since he did manage to save his prized automobile but ignored the pleas of several (2?) neighbors who were there and were encouraging him to run in the house and get the children. He didn't even try. And funny how the fire seemed to start simultaneously everywhere it needed to be to block all the exits and doorways to the kids' bedrooms. There was a back door, but a refrigerator had been moved to block the back door, and no one could get through it. There was contradictory testimony about that refrigerator, and it may be that the wife lied about it when she still believed that her husband was innocent. Ask her now what she thinks.

And finally, a jury of his peers heard all the evidence and decided he was guilty. None of us know all that they heard. Why should our judgement be better than theirs. Innumerable judges since then have also reviewed the evidence and law ad nauseum, and not one court or judge decided to reverse the original judgement of that jury. Why we're listening to people who oppose capital punishment and would say anything to see it gone is beyond me. Willingham was guilty, as a matter of law and as a matter of fact. We can second guess the jury verdict, but that's a long way from claiming Willingham was anything but lawfully convicted of a capital crime by a jury of his peers and accorded plenty of opportunity for appellate review.

Trying to compare the Amanda Knox case to anything here is a little tenuous. I'm not even sure any of us have a grasp of what the Italian authorities were speculating as their theory of the case, because it was so incoherent.

Roadkill711 said...

Paradoxically, some people think that Lithwick has good critical thinking skills.

Robert Cook said...

"The source of most of this smoke though, is the Innocence Project, and the Natl Association of Criminal Defense Lawyers, hardly impartial either one. Many, maybe most, of the so-called exonerations have actually been persons who were clearly guilty as sin raising grounds for a new trial, which has become impossible because of the passage of time, so the defendant walks and is 'exonerated' of a crime that he/she pretty obviously committed.

"And all these DNA-based 'exonerations'? Most of them are probably the result of contamination, because these days, our ability to locate and discriminate individual DNA has outstripped our ability to determine age or relative layers of that DNA."

How are you in a position to assert that most exonerations have been of persons who were actually guilty? Your qualifier "probably" (regarding contamination of the DNA evidence) reveals that you don't know if what you're saying is true.

Do you believe that, among the many thousands of people convicted of crimes each year, adding up over time, there are not at least hundreds of persons convicted of crimes who are, in fact, innocent?

JCC said...

@ Cook -

So, you're generalizing? And doing do from my statements? As usual, you have no factual basis for anything you say.

Take any set of exonerations you want. Do some research. Then come back and we can discuss those specific cases. Some will be genuine discovery that another person actually committed the charged crime. Most will not. Most will not change any essential fact of the original conviction, but what they will do is create a trial issue (IAC for instance) on appeal that causes a basis for a new trial, decades after the crime and long after any chance of a retrial is gone. Presto! An exoneration.

And of course I have to qualify. Without having access to the original investigative records, or the original trial transcript, how can anyone, including you or me, make a definitive statement on the guilt or innocence about anyone once a trial verdict has been overturned.

If you carefully read the basis for many - or even most - of the DNA based exonerations, you will see that physical evidence which has been handled by perhaps a dozen people or more, most of it in less than lab conditions, including cops, court clerks, lawyers, maybe even jurors, is now examined with technology than can recover DNA from momentary, casual contact. Then when DNA specimens are found which do not match the original suspect, exoneration. It's ridiculous.

Robert Cook said...


You were the one generalizing, and without providing any information to support your statements:

"Many, maybe most, of the so-called exonerations have actually been persons who were clearly guilty as sin....."

"And all these DNA-based 'exonerations'? Most of them are probably the result of contamination...."

You look for reasons (in your response) to insinuate the exonerating evidence has been "in most cases" "probably" contaminated, so, the exonerations are therefore baloney. Unless you are an active participant in these cases, with direct access to all the evidence, it seems you are the one with no factual basis for what you say.

Again, I ask: do you not believe it possible that among the millions of persons incarcerated in our penal system over the past several decades there are many--at least hundreds, possibly thousand--of persons who were found guilty even though innocent?

prairie wind said...

Attitudes toward criminal justice reforms don't come down to Republican v Democrat or liberal v conservative. Attitudes toward the criminal justice system come down to "I've been through the meatgrinder that is our criminal justice system" v "all I know about CJ I learned from tv" OR "I earn my living by putting/keeping people in prison" v "I pay to keep people in prison and I'd rather keep those costs down by putting fewer people there."

If the Innocence projects end up freeing a few of the wrong people while they work to free the right people, I have no problem with that.

It is better that ten guilty persons escape than that one innocent suffer.

Robert Cook said...

"If the Innocence projects end up freeing a few of the wrong people while they work to free the right people, I have no problem with that.

"It is better that ten guilty persons escape than that one innocent suffer."


Sammy Finkelman said...

I know about this. This is the famous hair analysis.

The FBI crime lab was in general not good at all. They kept on finding no explosives at fragments of TWA Flight 80 although wrecjage tested positive many times. They found something that nobody else found, something that starts with an R I think (it would have been asign of a Libyan explosive), and they did acknowledge one finding of PETN. Later on the FBI tried to explain that away by attributing the PETN to a test of a dog - but the facts actually don't match.

Sammy Finkelman said...

Re TWA Flight 800. The missile theory is part of the cover-up and originated in the White House. I am not sure exactly what Bill Clinton was covering up. Probably something to do with organized crime.

Sammy Finkelman said...

For someone innocent exedcuted based on false scientific testimony, read this:


This came to light afetr 2006.

Steven said...

@JCC --

I was mostly addressing BigMike and similar. My point is that Cameron Willingham was not clearly innocent. Having declared him not clearly innocent, I felt obligated to give an example of a case where I did think a clear innocent was convicted, specifically to make the contrast . . . clear.

JaimeRoberto said...

To Lithwick it's a paradox because it is impossible that Scalia as a conservative could be concerned with false convictions, but that's only the case because she wasn't paying attention and she's blinded by her own biases.

Perhaps we need a word for "a proposition that is strongly counter-intuitive because the observer wasn't paying attention". We could call such a proposition a lithwick.

JCC said...

Steven -

I have the sense that Amanda Know was probably innocent, but the entire thing was so incoherent, it was hard to judge anything about it, plus unlike many of the U S cases, there were no original documents available online, so one was left with nothing but stupid media accounts, many of which were nothing but copies of each other

Re exonerations, they tend to be nothing but press releases from the lawyers who represented the exoneration lottery winner in point, which unsurprisingly neglect to mention things like confessions or eyewitnesses, but do always equate a grant of a new trial with an exoneration, when that trial becomes an impossibility because the witnesses are dead, the evidence lost, etc.

There have been some clearly accurate exonerations, where DNA actually identified another suspect, who was by proximity and behavior, a likely offender, and who in a very few cases, actually confessed. But most of the 'exonerations' don't produce DNA which can be matched to a suspect in the burgeoning criminal data bases, probably because the discovered profile is from someone in law enforcement or the courts, and it got there by contamination. But because that profile does not match the person already convicted, voila! Exoneration.

You can probably tell that this really irritates me when these innocence groups misrepresent what happens and engage in a rewriting of history. The government has to meet a very high burden to convict. If something happens that calls into question whether the prosecution actually met that burden, fine. But lets not call this "exoneration." Let's call it "We found an error (that didn't used to be an error) after all these years and it's too late for the government to retry, so the defendant got lucky and now he goes free because the rules have changed even though a jury said he was guilty." instead of pretending "He didn't do it." Or we could just say "He got an OJ Simpson and now he's out."

But thanks for explaining. I get wound up.